Like Most State Ideas, the Death Penalty Does Not Work

Thursday, December 13, 2018

Growing up in a Catholic household, I was taught—and often reminded of—the basic concept of forgiveness. It is better to forgive another for their transgressions than to seek retribution. But to forgive another is one of the hardest things a person can ask of themselves. It involves, if only temporarily, setting aside our pride, sadness, pain, and rage in order to feel something for the perpetrator. It goes against every natural instinct for revenge and forces us to acknowledge the worth of another human being despite our anger and disgust.

To put it simply, forgiveness is not for the weak. But when weakness is combined with state powers, we are left with the convoluted, frequently challenged, ineffective, and often erroneous process of capital punishment.

I realized my stance on state executions could not hold up to scrutiny.

Before we continue, it is worth noting that I was supportive of the death penalty until very recently. While I was not fond of the idea, I believed there were crimes so heinous that they warranted putting the perpetrators to death, as society would be better off without such persons. But in those years, through research, coming to a better understanding of individual liberty and the role of the state and seeing the news pour in about botched executions around the country, I realized my stance on state executions could not hold up to scrutiny. The main arguments I once made in conversation could no longer hold water, and I decided only a year ago that I can no longer support such punishments. I’ll take you through my process, step-by-step.

“Threat of Execution Is a Strong Deterrent”

Death is not just a deterrent or a strong deterrent, but the ultimate deterrent. I recall, if you’ll permit me, an episode of Star Trek: The Next Generation in which the crew goes down to a planet to find a veritable paradise. There’s no crime, no pain, no suffering—only pleasure.

Of course, it is later revealed that the society was not always this way, and they implemented an instant death penalty for anyone breaking the law. Any law. When Wesley Crusher falls into a bed of flowers while trying to catch a ball, the authorities run over and attempt to give him a lethal injection. I’ll spare you the rest of the story and simply say that Jean-Luc comes down, makes an impassioned speech, and refuses to hand Wesley over, defying their laws and saving a young life.

So what’s wrong with having a powerful deterrent? Well, deterrents don’t really work. I could get a ticket for speeding through a “safety corridor” in Arizona, but I still drive a routine 80 on the highway. Someone stealing a car could face several months or years in prison, but nearly 800,000 vehicles were stolen in 2017. And a murderer could have their life taken, but 5,738 homicides took place in 2017.

Death does not prevent crime, it only complicates things later on.

When looking at the crime of murder, barring mental illness, there are really only three types: crimes of passion, crimes of necessity, and pre-meditated crimes. A crime of passion is an emotional crime, one that does not use reason or logic, but rather is rooted in a primal instinct stemming from rage in response to an external stimulus. There is no forethought as to the consequences—only the action taking place in the moment. A crime of necessity is often similar to a crime of passion but entails a little more forethought; it is a crime required to fulfill another crime, such as killing a witness or stealing a vehicle. A pre-meditated crime is one that involves careful planning and execution with a heavy focus on not getting caught.

What the first two have in common is that the threat of execution is not on anyone’s mind until afterward, when the person has a moment to fully consider their actions. For pre-meditated crime, their actions and the consequences are fully considered beforehand, and they still proceed. Death does not prevent crime, it only complicates things later on.

“They Were Found Guilty in the Court of Law”

If a punishment is so severe that it is irreversible, how can we allow for any error?

Let’s briefly discuss something that we all know: juries are not always right. In fact, they are often wrong. A recent study found that roughly 4.1 percent of convictions that resulted in the death penalty were incorrect and that the state has, in fact, executed innocent persons. That’s one in 25 convictions!

If a punishment is so severe that it is irreversible, how can we allow for any error? I have heard some say that if one innocent person is put to death in exchange for ten guilty persons, it is a trade they are willing to make. But when you put it that way, would you actually be willing to make that trade yourself? Probably not. Sacrificing yourself to the state in order for the system to remain so others may be executed is a twisted sense of loyalty that very few, if any, possess.

“The State Should Have the Power to Execute”

To put it as bluntly as possible: no, it really [expletive] shouldn’t. Two things come to mind; first, the Eighth Amendment, which guarantees freedom from “cruel and unusual punishments,” and second, the right to life itself.

Even if we did not consider death itself to be cruel or unusual, the methods that are used are far from perfect.

If the state is given the authority to take a life when it is deemed necessary, how can it then be expected to protect life? If we, as a society, become numb to the idea that in the course of the duties of government, some individuals are going to lose their lives, we risk becoming numb to it entirely. “Doing their job” or “just following orders” are statements that terrify and disgust many of us in the context of history. But in the context of American society, they are used as a means of defending state agents when a life has been lost without cause or necessity.

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Cruel and unusual punishment can be defined in a number of ways; it can be considered to mean punishment free from pain or torture, free from mental anguish, free from humiliation and degradation. Capital punishment has never gone off without a hitch; even if we did not consider death itself to be cruel or unusual, the methods that are used are far from perfect.

Execution methods have ranged from hanging and electrocution to lethal gas, lethal injection, and firing squad. All but the use of firing squads have had “botched executions,” as defined by Austin Sarat from Amherst College:

Botched executions occur when there is a breakdown in, or departure from, the “protocol” for a particular method of execution. The protocol can be established by the norms, expectations, and advertised virtues of each method or by the government’s officially adopted execution guidelines. Botched executions are “those involving unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner.” Examples of such problems include, among other things, inmates catching fire while being electrocuted, being strangled during hangings (instead of having their necks broken), and being administered the wrong dosages of specific drugs for lethal injections.

The most recent botched execution came on February 22, 2018, when Doyle Lee Hamm’s execution by lethal injection was called off after prison officials spent two and a half hours attempting to find a vein. Hamm received nearly a dozen puncture wounds, including in his groin, a puncture wound to his bladder, and another in his femoral artery.

In 2014, four separate executions were botched after the necessary drugs were banned for the purposes of state executions by the manufacturers themselves. The belief that someone who is already imprisoned needs to die in order to protect society is misguided. Prison officials attempted to improvise with untested cocktails that resulted in drawn-out deaths where the prisoners were visibly suffering, in some cases for several hours before they could be pronounced dead. While we can talk about the sheer wait time and the anguish prisoners feel while awaiting their fate, the reality is that if a method of execution cannot be performed without error, pain and suffering, or what seems to be near-maliciousness, it cannot be a worthy form of execution.

Within libertarian philosophy, the right to life is immutable and protected by the non-aggression principle, meaning that any use of force, save for self-defense or in the defense of one’s property, is invalid and therefore violates natural law. The process of execution fails to live up to this; the belief that someone who is already imprisoned needs to die in order to protect society is misguided. The person who is strapped to a gurney waiting for a vein to be found is not, in that moment, a threat, and their execution is an act of aggression by the state.

Final Thoughts

When dealing with a capital crime, there is no good outcome in terms of punishment. I often speak of the virtues of restorative justice in conversation with friends and family; focusing on restitution and restoring the balance between the victim and the perpetrator. This requires a level of empathy from both parties and an individual commitment to reach an understanding and right the wrong.

Providing the state with the authority to kill is neither effective nor acceptable.

With a crime such as murder, nothing can be done to restore what was lost. One might say that by executing the perpetrator, a balance has been restored. This is not a positive form of restoration but, rather, a negative form: Something was taken from the victim—in this example, their life—and so something is taken from the perpetrator—again, their life. This does not actually restore what was lost but only takes from both parties. The end result is two lives lost, two grieving families, and nothing brought back.

There are many theories on proper punishments for all forms of crime, but providing the state with the authority to kill is neither effective nor acceptable. One dead body will not bring back another. The state is meant to be a mediator, focused on finding justice rather than acting as the arm of vengeance.